WOODRING v. TERRITORY OF OKLAHOMA

WOODRING v. TERRITORY OF OKLAHOMA
1904 OK 65
78 P. 85
14 Okla. 250
Decided: 09/01/1904
Supreme Court of Oklahoma

Supreme Court of the Territory of Oklahoma.

WOODRING
v.
TERRITORY.

Sept. 1, 1904.

Syllabus by the Court.

¶0 1. In the prosecution of a case where the defendant is charged with stealing a domestic animal, the indictment being drawn under article 1 of chapter 20, p. 104, of the Session Laws of 1895, it is not necessary that the indictment should contain an allegation of the value of the animal alleged to have been stolen.
2. In the trial of a case where the defendant is charged under article 1 of chapter 20, p. 104, of the Session Laws of 1895, with stealing a domestic animal, the territory is not required to prove on the trial the value of the property stolen.
3. Where an indictment for stealing a domestic animal fails to fully describe the property alleged to have been stolen, and avers that a better description cannot be given, such allegation of description is not traversable, and the defendant will not be allowed to introduce evidence tending to show that the grand jury did have, or could have obtained, a more perfect description.

B. B. Blakeney and J. A. Powers, for plaintiff in error.
C. M. Thacker, Co. Atty., and J. C. Robberts, Atty. Gen., for the Territory.

PANCOAST, J.

¶1 At the August, 1903, term of the district court of Greer county the plaintiff in error was tried and convicted of the crime of stealing a domestic animal, and sentenced to five years' imprisonment in the Territorial Penitentiary. On appeal from that judgment two errors, only, of the trial court are complained of: First, that the indictment failed to state the value of the animal alleged to have been stolen; second, that the court erred in refusing to give instruction No. 2, requested by the defendant. Of these in their order.

¶2 The indictment was drawn under article 1 of chapter 20, p. 104, of the Session Laws of 1895, which provides that if any person shall steal any stallion or gelding, etc., he shall be guilty of a felony, and on conviction thereof shall be punished by confinement in the Territorial Penitentiary for a term of not less than one nor more than ten years. The indictment does not contain any allegation of value, and it is for the want of this allegation that the indictment is claimed not to state facts sufficient to constitute a public offense. In speaking of this question in the case of Hughes v. The Territory, 8 Okl. 37,

¶3 The next proposition goes to the question of description of the animal alleged to have been stolen. The indictment, in describing the property, reads as follows: "Did take, steal, and carry away a certain domestic animal, to wit, a horse about two and a half years old, the said horse having been a stallion until about the time he was so taken, and having been castrated and made a gelding about the time he was so taken, so that the grand jurors cannot ascertain and do not know whether said horse was a stallion or a gelding at said time." This subjects has been before the various courts in many different phases. The general rule upon this subject is that the article stolen should be described in the indictment with such certainty as will enable the jury to decides whether such article shown to have been stolen is the same with that upon which the indictment is founded, and show judicially to the court that it can be the subject-matter of the offense charged, and enable the defendant to plead his former acquittal or conviction to a subsequent indictment or information relating to the same article. The grand jury is required to describe the property with such particularity only as they are able to do from the evidence before them. The remainder of the description, to fill the ordinary requirements of the law, may be alleged as unknown. The only uncertainty of description in the indictment in this case was as to whether or not the animal was a gelding or a stallion, the grand jury seemingly being unable to tell. The reason for this uncertainty, however, is specifically set out in the indictment, and, when so set out and explained, it seems to us that the uncertainty of description is excused, and it was unnecessary to state the same further. There was no uncertainty in the minds of the grand jurors as to the identity of the animal, the only uncertainty being as to when the animal had been castrated--whether before or after it was stolen; and we think from an examination of the evidence contained in the record in this case that the matter was not made entirely clear at the trial.

¶4 We think the indictment is sufficient to fill all of the requirements of the general rule, but, if not sufficient in that respect, it is sufficient, when a full and complete description cannot be given, for the grand jury to so state, and to state that a better description cannot be given. John Reeves v. Territory of Oklahoma, 10 Okl. 196,

¶5 Counsel contend that, where the indictment fails to fully describe the property alleged to have been stolen, and avers that a better description cannot be given, upon the trial the question of the truthfulness of such allegation may be traversed, and, if the allegation is shown to be untrue, that the defendant should be acquitted. In 126 Mass., supra, the court refused to give an instruction to the effect that if the jury found that the grand jury had a full description of the property, and could have fully described it in the indictment, but did not do so, but, on the contrary, alleged that a better description could not be given, they should acquit. In the case of the State v. Taunt, supra, the court held that the averment in an indictment that a more particular description of the property is unknown is not traversable. We think this is the better doctrine. If the want of proper description or the allegation that a better description could not be given by the grand jury should in any way prejudice the rights of the defendant, or by reason of the evidence given at the trial the defendant was taken by surprise, or if he was misled by the language of the indictment, then the court might very properly grant him a new trial; but in this case there was no uncertainty about the animal itself. The allegation that the animal was either a gelding or a stallion did not refer to separate and different animals, nor was there anything of uncertainty in that regard. There was but one animal alleged to have been stolen, the description of which was complete, except that the grand jurors were uncertain whether the animal was a stallion or a gelding, but that he was one or the other. Whether one or the other, there was no attempt to charge two animals to have been stolen, or one of two different animals.

¶6 There being no error in the record, the judgment of the court below is affirmed.

¶7 All the justices concurring, except BEAUCHAMP, J., who tried the case below, not sitting, and BURWELL, J., dissenting.